Citation Nr: 1736665	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  13-09 550A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES 

1. Entitlement to an initial rating in excess of 50 percent for anxiety disorder.

2. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	J. Michael Woods, Attorney at Law


ATTORNEY FOR THE BOARD

C. D. Simpson, Counsel




INTRODUCTION

The Veteran had active service in the U.S. Air Force from August 1967 to August 1971.

This case comes before the Board of Veterans' Appeals (BVA or Board) from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In that decision, the RO granted service connection for anxiety disorder and assigned an initial 10 percent rating effective the November 16, 2010 date of claim.  The Veteran timely appealed the initial rating assigned.  In March 2013, the RO increased the initial rating to 50 percent, also effective November 16, 2010.

In April 2015, the Board remanded the appeal for additional development.  

In March 2017, the Veteran appointed the current representative, and VA has recognized such change in representation.   

The record raises the issue of unemployability due to service-connected anxiety disorder.  Consequently, the Board has added the issue of entitlement to a TDIU.  Roberson v. Principi, 251 F.3d 1378, 1384 (2001); Rice v. Shinseki, 22 Vet. App. 447 (2009).


FINDINGS OF FACT

1.  The evidence is at least evenly balanced as to whether the symptoms and overall impairment caused by the Veteran's service-connected anxiety disorder have more nearly approximated occupational and social impairment with deficiencies in most areas, but it has not more nearly approximated total occupational and social impairment.

2.  Throughout the entire appeal period, the evidence is at least evenly balanced as to whether the Veteran's service connected anxiety rendered him unable to secure or follow substantially gainful employment.


CONCLUSIONS OF LAW

1. The criteria for an initial rating of 70 percent, but no higher, for anxiety disorder, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9413 (2016).

2. With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU are met.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.400, 4.3, 4.16 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  The Veteran was appropriately notified about the information and evidence needed to substantiate the claim in a November 2010 letter.  Neither the Veteran, nor his representative, asserts prejudice from any notification deficiency and none has been identified by the Board.  The duty to notify is satisfied.    

In addition, VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and affording him multiple VA examinations.  As indicated by the discussion below, the December 2016 examination is adequate because it was based on consideration of the Veteran's prior medical history and described his anxiety in sufficient detail to allow the Board to make a fully informed evaluation.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  There is no evidence that additional records have yet to be requested, or that additional examinations are in order.

II. Increased rating for anxiety

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.

Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)).  As shown below, an initial, uniform 70 percent is warranted for anxiety in this particular case.

The Veteran's anxiety disorder is currently evaluated as 50 percent disabling under 38 C.F.R. § 4.130, DC 9413.  All acquired psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders.  Under the general rating formula, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.

A total schedular rating of 100 percent is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. § 4.130, DC 9414.

When determining the appropriate disability evaluation to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004).  Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118.

The Global Assessment of Functioning (GAF) scale reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)).  [An interim final rule was issued on August 4, 2014, that replaced the DSM-IV with the DSM-V. However, the provisions of this interim final rule do not apply to the instant case, as these provisions only apply to applications for benefits that are received by VA or that are pending before the RO on or after August 4, 2014.]  A GAF score between 61-70 contemplates some mild symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but when the individual is functioning pretty well and has some meaningful interpersonal relationships.  A score of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peer or coworkers).  A score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job).

VA Mental Health (MH) records from February to August 2010 reflect that the Veteran had received a provisional posttraumatic stress disorder (PTSD) diagnosis.  He was referred to MH care due to complaints of flashbacks, nightmares, avoidance and sleep disruption.  Objective observations were notable for dysthymic mood.  Affect was described as constricted, congruent, sad, anxious and guarded.  The clinician noted a tentative response style and soft speech.  The Veteran denied any current suicide ideation.  The clinician further commented that there were no indications for psychosis type symptoms and memory was grossly intact for personal and remote history.  The examiner diagnosed PTSD and dysthymia and listed a GAF of 50.  

The Veteran had subsequent VA MH consultations in April, June and August 2010.   He was found to have GAFs from 50 to 55.  Clinical observations were substantially similar to those recorded in February 2010.    

In his November 2010 claim, the Veteran reported that he had PTSD and was treated at the Orlando VA Medical Center (VAMC).  

In April 2011, the Veteran underwent a VA PTSD examination.  The examiner noted the recent psychiatric treatment history.  The Veteran currently took antidepressants with mixed results and complained about crying spells, depression, poor sleep and suicidal ideations.  The examiner suggested that suicidal ideation was a new symptom since the VA treatment records reflect that he denied it.  The Veteran denied having any legal problems.  He had two marriages ending in divorce.  He was currently single.  He described his relationship with his children and mother as good.  He had moved to Florida in 2008 because he could not find work in his old hometown, Kansas City.  He now lived next door to his mother.  He reported having a couple of friends, but preferred to isolate.  He denied any relationship history since his divorce.  For suicide attempts, the Veteran endorsed suicide ideations, described as playing recklessly with a handgun.  However, the examiner commented that this report was inconsistent with the clinical records.  The Veteran denied any substance abuse problems.  The examiner commented that clinical records suggested an alcohol abuse history and the Veteran was evasive in answering alcohol use questions.  Psychiatric examination was unremarkable.  Notably, the examiner assessed the Veteran's mood as good.  As for PTSD symptoms, the Veteran reported the following symptoms and frequency: nightmares four times per week; intrusive recollections, a couple of times per week; avoidant thought and activities most days, of a mild intensity; feelings of detachment or estrangement a few days a week of a mild intensity; difficulty falling and staying asleep a few times a week of a moderate intensity; and exaggerated startle response, variable frequency of a mild to subclinical intensity.  Quantitative testing was not consistent with PTSD.  The examiner explained that the Veteran was experiencing some emotional distress, but that it was due to current life circumstances.  He diagnosed anxiety disorder, history of alcohol abuse and listed a GAF of 66.  He commented that the Veteran had mild symptoms associated with anxiety and generally functioned pretty well.  He characterized the mental disorder symptoms as not being severe enough to interfere with occupational and social functioning.  

In May 2013, Dr. H-G completed a Disability Benefits Questionnaire (DBQ) for the Veteran.  She diagnosed anxiety disorder and listed a GAF of 50.  She summarized the level of occupational and social impairment as consistent with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  For her report, she reviewed the claims folder, VA clinical records and conducted a mental status examination (MSE) of the Veteran.  For social functioning, the Veteran stated that he lived with his elderly mother.  He denied having friends.  He had three adult children and did not spend much time with them due to his anxiety.  He attained a high school education.  He had vocational training in tractor trailer mechanics and heating, ventilation and air conditioning (HVAC).  He worked as a HVAC technician for over 30 years.  He reported that he was fearful to return to work due to auditory hallucinations and concerns about his ability.  He stated that he took medication without much success.  He endorsed having increased auditory hallucinations and suicidal ideations.  He reported that he continued to consume alcohol as a form of self-medication.  Dr. H-G reported that the following symptoms apply: depressed mood, anxiety, suspiciousness, near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective relationships, suicidal ideation, obsessional rituals which interfere with routine activities, impaired impulse control, persistent hallucinations or delusions, persistent danger of hurting self or others, neglect of personal appearance and hygiene and intermittent inability to perform activities of daily living.

In a contemporaneous addendum, Dr. H-G further explained her report.  She stated that the Veteran had difficulty maintaining personal hygiene and relied on his elderly mother to complete activities of daily living for him.  She indicated the GAF of 50 was appropriate because the Veteran's psychiatric impairment was debilitating and most closely akin to occupational and social deficiencies in most areas of function.  She further stated that the Veteran had frequent suicide ideations.  He was concerned about how he would hurt himself in common work situations, such as jumping off a roof or getting shocked.  She also noted his reports concerning workplace violence.  She opined that the Veteran could not sustain the stress within a competitive workplace.  She included an abstract of a published medical article finding that comorbid anxiety is a suicide risk factor among depressed Veterans.  

In December 2016, the Veteran underwent a VA/QTC examination.  The examiner listed a diagnosis of major depressive disorder with anxious distress, moderate.  He characterized the overall occupational and social impairment as consistent with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  He reviewed the electronic claims folder and noted the pertinent psychiatric history.  As for current social status, the Veteran was single.  He described having a "fairly good" relationship with family members.  However, he reported difficulty establishing social relationships.  He continued to live with his mother.  As for occupational status, the Veteran reported working as a commercial HVAC technician.  He described having "so-so" relationships with his co-workers.  He stated that he retired and had not worked since 2008.  The examiner listed the applicable symptoms as follows: depressed mood, anxiety, chronic sleep impairment, mild memory loss, difficulty adapting to stressful circumstances including work or a work like setting, suicidal ideation, and intermittent inability to perform activities of daily living.  For behavioral observations, the examiner detailed that the Veteran was fully oriented, casually dressed and adequately groomed.  The Veteran initially exhibited an angry or irritable mood, but calmed as the interview progressed.  His speech was notable for minor spontaneous conversation.  His thought process was normal and he denied psychosis type thoughts.  He denied homicidal ideation, but endorsed suicidal ideations without plan.  The examiner commented that the Veteran was cooperative and put forth strong effort throughout the examination.  The examiner stated that the above diagnosis was recharacterized from anxiety disorder to reflect the DSM-V practice and that the underlying symptoms had not changed.  He recommended that the Veteran receive outpatient treatment and psychotropic mediation.   
       
Upon review, the Board finds that the frequency, severity and duration of the Veteran's service-connected anxiety symptoms more closely approximate deficiencies in occupational and social function.  38 C.F.R. §§ 4.3, 4.7, 4.13, DC 9413.  It appears the Veteran's most significant anxiety symptoms are low mood, anhedonia, suicide ideation and hallucinations.  The Veteran is competent to report his psychiatric symptoms, including severe symptoms such as suicidal ideation and hallucinations, and his reports of severe symptoms must be considered.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  In this case, the overall disability picture reflects overall occupational and social function consistent with the Veteran's reports of severe symptoms.  Moreover, his reports are corroborated by Dr. H-G and the December 2016 VA/QTC examiner's endorsement of more severe applicable symptoms.  Dr. H-G's private medical opinion unequivocally relates anxiety symptoms of a greater frequency, severity and duration than the symptoms contemplated by the current 50 percent disability rating.  The December 2016 VA/QTC examiner explicitly notes the Veteran's strong efforts during the clinical interview.  For these reasons, the Board considers the Veteran's reports of symptoms, including severe symptoms, credible.  Id.; Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran in weighing evidence).  Moreover, the language of the general rating formula indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.  Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017).  Accordingly, the Board finds the evidence reflects that the Veteran's anxiety symptoms are more closely akin to deficiencies in occupational and social functioning.  Id.; 38 C.F.R. §§ 4.3, 4.7, 4.13, DC 9413.  

The Board has also considered the April 2011 VA and December 2016 VA/QTC reports suggesting anxiety symptoms of lesser frequency, severity and duration than those contemplated by the 70 percent rating criteria.  In this case, the April 2011 VA examiner's finding of essentially no disability is inconsistent with the additional evidence of record.  It also appears the April 2011 VA examiner was concerned about the Veteran's pecuniary bias, but, as explained above, the Board finds the Veteran generally credible.  As to the December 2016 VA examiner's assessment, it is internally inconsistent, as another portion of the examination report documents symptoms indicative of deficiencies in occupational and social function.  To the extent the April 2011 VA examiner and December 2016 VA/QTC examiner characterized the Veteran's anxiety symptoms as of a lesser severity, the Board does not find such characterizations persuasive when considering the evidence in its entirety.

The Veteran is not, however, entitled to a higher, 100 percent rating for any portion of the appeal period.  The most favorable overall clinical assessment is from Dr. H-G and she declines to characterize the occupational and social impairment as akin to symptoms approximating a total rating.  See May 2013 Dr. H-G psychiatric evaluation report.  Moreover, while the ultimate question of whether symptoms more nearly approximate total occupational and social impairment is ultimately an adjudicative rather than a medical one, Dr. H-G's opinion on this question is consistent with the evidence of record.  38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination ... so that the current rating may accurately reflect the elements of disability present."); VA Adjudication Procedures Manual, M21-1, Part III, Subpart. iv, Chapter 3, Section A.7.i (updated Oct. 28, 2015) ("Do not request a medical authority to make conclusions of law, which is a responsibility inherent to the rating activity").  While the Veteran endorses having hallucinations, suicidal ideation and hygiene problems, the frequency, severity and duration of these symptoms is not totally disabling as the Veteran was able to present for the May 2013 and December 2016 evaluation with adequate hygiene and cooperate with the examiners.  His anxiety symptoms have not been shown to necessitate hospitalization and he has engaged in some social activities.  The frequency, severity and duration of anxiety symptoms or their equivalent have not approximated gross impairment in thought processes or communication, grossly inappropriate behavior, or persistent danger of the Veteran hurting himself or others, or memory loss for names of close relatives, his own occupation, or his own name.  Thus, the symptoms and overall impairment from service-connected anxiety disorder symptoms do not more nearly approximate the total occupational and social impairment required for a 100 percent rating.  

III. TDIU

VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91.

The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more.  Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability.  38 C.F.R. § 4.16(a).

The Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected disability and advancing age, which would justify a TDIU due solely to the service-connected disabilities.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993).  Marginal employment shall not be considered substantially gainful employment.  38 C.F.R. § 4.16(a).

The Veteran is now service-connected for an anxiety disorder, rated as 70 percent disabling.  He meets the percentage criteria for a TDIU laid out in 38 C.F.R. § 4.16(a) for the entire appeals period.  Even so, to grant TDIU it must be found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected anxiety disorder.  

Consequently, the Board must determine whether the Veteran's service-connected disabilities combine to preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage").  Moore v. Derwinski, 1 Vet. App. 356 (1991).  The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative.  The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he can find employment.  Van Hoose, 4 Vet. App. at 363.  Inability to work due to advancing age may not be considered.  38 C.F.R. §§ 3.341(a), 4.19 (2016).  In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19.

Although the Veteran has not filled out the formal TDIU application form, the claim for a higher initial rating on appeal precedes the date on which such form must be filed in all cases. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57660 (Sept. 25, 2014) (providing for a March 24, 2015 effective date of amendments to regulations describing the manner in which claims must be filed).  Moreover, VA's Adjudication Manual provides that if the issue of entitlement to a TDIU is raised and the Veteran fails to complete and return VA Form 21-8940, VA must make a decision on the issue of IU based on the available evidence of record.  M21-1, IV.ii.2.F.2.b.

As to the Veteran's employment and education history, he last had regular, gainful employment in 2008.  He worked for many years as a HVAC technician.  He has completed a high school education with HVAC vocational training.  

As to the Veteran's service-connected anxiety, Dr. H-G and the December 2016 VA/QTC examiner's reports indicate that it would significantly interfere with work.  Dr. H-G provides a clear opinion that the Veteran could not be expected to resume employment due to his inability to manage typical work related stress.  The December 2016 VA/QTC examiner indicates that the anxiety symptoms would pose difficulty adapting to stressful circumstance, including work or a worklike setting.  
The Board considers these reports highly suggestive that the service-connected anxiety would preclude work for which the Veteran would otherwise be qualified for.  Caluza, 7 Vet. App. at 506 (Board has authority to weigh evidence).  

The Board notes the April 2011 VA medical opinion indicating that the Veteran's psychiatric symptoms are nominal.  As discussed above, the Board finds the Veteran generally credible, and the April 2011 VA examiner appears to discount the Veteran reports without a clearly valid reason.  The Board does not find it to be probative evidence weighing against unemployability.  Id.

After having reviewed the record, the Board finds that during the entire claims period, service-connected anxiety rendered the Veteran unemployable.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"; "neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert").  Entitlement to a TDIU is therefore warranted.


ORDER

An initial rating of 70 percent, but no higher, is granted for service-connected anxiety disorder, subject to controlling regulations governing the payment of monetary awards.

Entitlement to a TDIU is granted, subject to controlling regulations governing the payment of monetary awards.




____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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